Earlier this month, a California judge made national headlines by striking the state’s teacher tenure laws on the grounds that the legislation violates students’ rights to equal protection guaranteed by California’s Constitution. As attorneys and scholars debate the soundness of Judge Rolf Treu’s legal conclusions, his factual foundation was shaken this week when a key expert witness claimed the Court misinterpreted statements he made during deposition – giving opponents further reason to believe the ruling will not survive the inevitable appeal process.

Teacher Tenure Ruling Relies on Expert Witness Testimony

Finding that tenure laws keep ineffective teachers on the job, thus depriving poor and minority students of quality education, a basic breakdown of the point-by-point reasoning in Judge Treu’s teacher tenure opinion is as follows:

Tenure laws fail strict scrutiny because there is no compelling reason for a state to protect bad teachers.

The strength and validity of the legal conclusions supporting points 3 and 4 are left for scholars and higher courts to debate, but the factual meat of Judge Treu’s opinion that makes his conclusion possible rests in point 2: the assertion that teacher tenure laws produce bad teachers by protecting them from dismissal. In support of his position, Judge Treu cited testimony from Dr. David Berliner, an education expert witness who testified that “1 to 3% of teachers in California are grossly ineffective.”

Finding that the percentages quoted by Dr. Berliner represented a startlingly high number of ineffective teachers, Judge Treu concluded that tenure laws have created a low quality educational environment that has a “negative impact on a significant number of California students,” making the tenure protection illegal under the state’s constitutional guarantee of equal treatment across all racial and ethnic groups.

Education Expert Witness Claims He Was Misunderstood

In the wake of the controversial teacher tenure ruling, Dr. Berliner publicly provided opponents the opportunity to undercut the factual foundation on which Judge Treu based his legal conclusions by claiming his estimates of “grossly ineffective” teachers were misunderstood by the court. As an expert witness, Dr. Berliner was questioned during a deposition about ways his “value-added model” of teacher effectiveness could identify bad teachers. When pressed by lawyers about whether or not 1 – 3% of educators had strong negative effect in the classroom – and were thus “grossly ineffective” – Dr. Berliner responded in the affirmative.

After realizing that Judge Treu relied on his conclusion that 1 – 3% of California teachers could be classified as grossly ineffective, Dr. Berliner clarified that he “never said that,” and that he was misquoted as an expert witness. Claiming that he estimated the figure when pressed by attorneys, Dr. Berliner stated that he has never met a grossly ineffective teacher, and his expert opinion about the overall quality of California’s educators was misrepresented in the landmark decision.

Misunderstood Expert Witness Testimony May Affect Outcome

A spokesperson for Students Matter, the organization that filed the lawsuit claiming teacher tenure laws were unconstitutional, was undeterred by Dr. Berliner’s claims that his expert opinion was misunderstood, saying that “nothing in the opinion hinges on that number.” Although the legal basis for Judge Treu’s opinion can stand independently of Dr. Berliner’s testimony, and is undoubtedly the aspect of the decision that will receive the brunt of the criticism and scrutiny on appeal, downplaying the effect of an expert witness countering his testimony can be dangerous for the plaintiffs.

Judge Treu supported his position that teacher tenure laws produce grossly ineffective educators with Dr. Berliner’s expert testimony, so even if an appeals court agrees with his legal conclusion that such laws can unconstitutionally deprive students of quality education – an outcome which is far from assured – an expert witness recanting testimony can cast doubt on the judge’s factual conclusion and influence the future of the litigation. Whether or not an appeals court places significant stock in Dr. Berliner’s efforts to clarify his testimony, the embarrassing circumstance of a misquoted expert serves as a reminder to judges and attorneys that it is critically important to properly understand exactly what expert witnesses say during trial.

About Colin Holloway, Attorney at Law

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Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.

About Colin Holloway, Attorney at Law

LinkedIn
Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.